divert from the waters of Crow creek, through and by means of said Stotts ditch, such water as remains in said Crow creek after supplying the Miller and Mulholland water right and the Rebbe riparian right, not exceeding thirty (30) inches of said water, as herein provided, with the right to go upon the land over and across which the said ditch and head gate are located, for the purpose of maintaining and operating the same."

The first and second conclusions of law seem to be clearly sustained by the findings of the court, and these conclusions of law seem to necessarily follow from the findings of the court and the first and second findings are sufficient to support the judgment of the court, independently of the third conclusion.

It is further contended by the appellant that the plaintiffs were not proper parties to this action, as they had conveyed the property by trust deed to James P. Prindle prior to the commencement of this action to secure the payment of $5,500 loaned by the said Prindle to the plaintiffs and secured by trust deed. But an examination of such deed discloses the fact that no power of sale was vested in the trustee, and that in case of default in the payment of the principal, interest, etc., plaintiffs were required through their trustee to make application to the court by a bill in equity for a decree foreclosing the same, thus making the trust deed in effect under our Code a mortgage constituting only a lien upon the property, and leaving the legal title still in the mortgagors. Langmaack v. Keith et al., 19 S. D. 351, 103 N. W. 210; McVay v. Tousley et al. (S. D.) 105 N. W. 932. There is therefore no merit to the contention of the appellant that the plaintiffs are not proper parties.

In the view we take of the case it will not be necessary to determine the question as to the claim of the plaintiffs, that they were entitled to the waters of Crow creek by reason of their 20 years' use and occupation of the Stotts ditch, as under the findings of the court that ditch and water right was located, and the location perfected by George W. Stotts, and the same conveyed by him to the plaintiffs' grantors, which was sufficient to vest the title so acquired by George W. Stotts in the plaintiffs and they succeeded to whatever rights he acquired by his location. As the court failed to find in favor of the appellant as to the transfer, by George W. Stotts to either of her grantors, of the title acquired by him by virtue of his location of the Stotts ditch, the court necessarily by implication found against the appellant's claim, the presumption being in the absence of an affirmative finding in favor of the appellant that the evidence was not sufficient to support the appellant's claim.

This brings us to the consideration of an important question arising on this appeal, namely, as to the admissibility of the records of the United States Land Office, includ

ing the evidence for the purpose of showing the time when settlement or entry was made under the homestead or pre-emption laws, as that evidence was excluded by the court and its ruling excepted to by the appellants. The appellants offered the evidence taken in the United States Land Office at Deadwood, in making the entries by Lilly A. Walker, George W. Stotts, and Willis E. Young, which was objected to as incompetent and immaterial, and the objection was sustained and exception taken. It is contended by the appellant that this evidence was admissible as being that of certain witnesses who had died or become incompetent before the trial of this . action on the ground that the record of the proceedings in the United States Land Office are competent in the trial of an action involving the rights to property, the title to which has passed through said office. While it may be admitted that the records of a land office are generally admissible in evidence to prove any fact established by such record the evidence introduced in such proceedings is ex parte and clearly inadmissible for the reason that the evidence was taken in a proceeding to which neither of the plaintiffs in this action nor their grantors were parties. The rule is undoubtedly well settled that the evidence of a witness taken in an action who has died or become incompetent as a witness, or is absent from the jurisdiction of the court, may be admitted in a subsequent action between the same parties or their privies involving the same subject-matter. 16 Cyc. 1088; C. & E. I. R. R. Co. v. O'Connor, 119 Ill. 586, 9 N. E. 263; Jeffries v. Castleman, 75 Ala. 262; St. Louis, I. M. & S. Ry. Co. v. Sweet, 60 Ark. 550, 31 S. W. 571; Fredericks v. Judah (Colo.) 11 Pac. 133; Jerome v. Bohm, 21 Colo. 322, 40 Pac. 570. But the evidence offered in the case at bar does not come within this rule. The Land Office proceeding did not constitute a trial as contemplated by the rule above stated, and the parties to this action were not concluded or directly affected by the evidence given in the Land Office proceedings as to the time settlement was made upon the land. We are of the opinion, therefore, that the court committed no error in excluding the evidence offered.

The contention of the appellant that the decree of the court is vague and uncertain, in that it does not definitely fix the amount of water to which the plaintiffs are entitled, as against the appellant, but we are of the opinion that this contention is untenable, and that the fact that the amount as limited to the carrying capacity of the ditch necessarily fixes the amount to which the plaintiffs are entitled, and from the excess of the amount so awarded to the plaintiffs under the Miller and Mulholland location the appellant is entitled to 30 inches and the plaintiffs are not entitled to take any water from Crow creek through the Stotts ditch until the de

fendant's 30 inches is supplied to her from said Crow creek. The rights of the appellant therefore are definitely determined by the court, the amount of water she may take from the creek, and under what conditions she is entitled to the same.

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

WAALER v. GREAT NORTHERN RY. CO. (Supreme Court of South Dakota. June 24, 1908.)

1. APPEAL AND ERROR-DETERMINATION-PROCEEDINGS IN LOWER COURT-DECISION AS LAW OF CASE.

The complaint in an action for an assault on plaintiff by an employé of defendant railroad company alleged that the assault was made by such employé while acting within scope of his authority, but did not allege that the assault was either expressly or impliedly authorized by defendant. A demurrer thereto having been sustained on appeal, plaintiff amended the complaint by adding allegations that plaintiff after being advised by defendant's section foreman and his crew, at the time of the assault, that they were instructed to construct a fence by defendant company, and proposed and intended so to do, notwithstanding plaintiff's protest for P., the owner of the land; that plaintiff said to the crew that he would remove such part of the fence then constructed if it was not removed, and would remove other fences on the land of P., and had with him an axe to tear down and remove the same, all for the purpose of preventing a trespass on P.'s land so being committed and threatened by defendant company by and through the section crew. Held, that such allegations showed that the assault on plaintiff was apparently for the purpose of continuing the work in the construction of the fence, and to prevent plaintiff from interfering therewith, and that the prior decision sustaining the demurrer was not applicable as the law of the case. 2. MASTER AND SERVANT LIABILITIES TO THIRD PERSONS-ASSAULT BY SERVANT. Plaintiff was directed by the owner of certain land to go and forbid workmen on defendant's railroad from erecting a fence. Plaintiff went, and the workmen refused to desist, whereupon plaintiff procured an axe and returned to the place, and not only forbade the workmen from continuing to construct the fence, but laid his axe thereon, and threatened, if they continued, to destroy the fence, as fast as it was completed, whereupon one of the workmen committed an assault on plaintiff. Held, that the defendant was liable for the assault, under the rule making a master responsible for the acts of the servant within the general scope of the servant's employment while engaged in the master's business and in the furtherance thereof, even if the servant's acts are done wantonly and willfully, and regardless of the fact that more force was used than was necessary, and that plaintiff was unnecessarily injured.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1230-1232.] 3. SAME-EVIDENCE-PROOF OF RELATION.

In an action against a railroad company for an assault committed by one of the members of a section crew, evidence held to justify a finding that the crew were employés of defendant. 4. SAME SCOPE OF AUTHORITY.

Where plaintiff was assaulted by members of defendant's section crew in an endeavor to prevent them from constructing certain fences on the land of plaintiff's employer, proof that

the foreman of the crew was directing the work and giving orders to the men under his charge to erect the fence was sufficient to establish his authority from defendant so to do.

Appeal from Circuit Court, Codington County.

Action by Lars O. Waaler against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Winsor & McNaughton and Hanten & Loucks, for appellant. Case & Shurtleff, for appellee.

CORSON, J. This is an action instituted by the plaintiff to recover damages for an alleged personal injury sustained by him by reason of an assault by one of the sectionmen, claimed to have been employed by the defendant under the direction of the foreman of the section crew. Verdict and judgment being in favor of the plaintiff, the defendant has appealed.

This action was before us at a former term of this court on an appeal from an order overruling the demurrer to the complaint, and which order was reversed by this court. The decision is reported in 18 S. D. 420, 100 N. W. 1097, 70 L. R. A. 731, 112 Am. St. Rep. 794. On the going down of the remittitur, the plaintiff amended his complaint and at the commencement of the trial the defendant objected to any evidence under the amended complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and that the judgment in the former action was res judicata and conclusive in the present action. This contention of the appellant is in our opinion untenable. The amended complaint contains very material allegations that were not contained in the original complaint, and which have the effect of bringing the case within the rule holding a defendant liable for the act of his servant or employé. The principal amendment is made in paragraph 5 of the complaint, and is as follows: "And after being advised by the said Henry Doust and said crew at said time that they were instructed to construct said fence by said defendant company, and proposed and intended so to do, notwithstanding the protest of the said plaintiff, for said Berit Pramhus, plaintiff said to said crew then and there that he would remove such part of the fence then constructed, if it was not removed, and would remove any other fence erected upon the land of the said Berit Pramhus, and had with him at said time an ax for the purpose of tearing down and removing said fence, all for the purpose of preventing the trespass upon the said land of the said Berit Pramhus so being committed, and threatened to be committed by the said defendant company by and through the section crew." It will be observed from the foregoing allegation that the plaintiff, as the agent of Berit Pramhus, the owner of the land, not only forbade the foreman of the section

It

crew to proceed with the building of the fence, but threatened to remove such part of the fence then constructed if it was not removed, and that he would remove any other fence constructed or placed upon the land, and had with him at said time an ax for the purpose of breaking down said fence. thus affirmatively appears that the plaintiff was threatening to forcibly prevent the erection of said fence, and that the acts of the defendant in making the assault upon the plaintiff were apparently for the purpose of continuing the work in the construction of the fence, and to prevent the plaintiff from interfering therewith. The decision of this court, therefore in sustaining the demurrer to the former complaint does not constitute the law of the case, and the judgment therein cannot be regarded as res adjudicata in the present action.

The contention of the appellant that the complaint as amended does not state facts sufficient to constitute a cause of action is in our opinion untenable. The true rule as to the liability of a master for the acts of his servant seems to be that for the acts of the servant within the general scope of his employment while engaged in his master's business, and done with the view of the furtherance of that business and in the master's interest, the master will be responsible, even if the acts be done wantonly and willfully. Rounds v. D., L. & W. Ry. Co., 64 N. Y. 129, 21 Am. Rep. 597, was a case in which the plaintiff jumped upon the platform of a baggage car on the defendant's road to ride to a place where the cars were being backed to make up a train. The rules of the company required the baggage master to allow no person on the baggage car. The baggageman ordered the plaintiff off while the car was in motion. A pile of wood was near the track. Plaintiff replied that he could not get off because of the wood, whereupon the baggagemaster kicked him off and he fell against the wood, and then under the cars, and was injured. The court held that the fact that the plaintiff was a trespasser was not a defense, and that the evidence was sufficient to authorize the submission of the defendant's liability to a jury, and in the opinion the court, speaking by Mr. Justice Andrews, says: "It is in general sufficient to make the master responsible that he gave to the servant an authority, or made it his duty to act in respect to the business in which he was engaged when the wrong was committed, and that the act complained of was done in the course of his employment. The master in that case will be deemed to have consented to and authorized the act of the servant, and he will not be excused from liability, although the servant abused his authority or was reckless in the performance of his duty, or inflicted an unnecessary injury in executing his master's orders. The master who puts the servant in a place of trust or responsibility, or commits to him the manage

ment of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another." In the case of Cohen v. Railway Co., 69 N. Y. 170, it is disclosed by the record that the plaintiff, while traveling in a buggy along the street in the city of New York, was stopped by a blockade of vehicles just as he had crossed defendant's track. The rear of the buggy was so near the track that a car could not pass without hitting it. A car came up, the driver of which after waiting a moment or two ordered the plaintiff to get off the track. Plaintiff was unable to move either way, and so notified the driver, but the driver immediately drove on, striking and upsetting plaintiff's buggy and injuring him. The Court of Appeals of New York held that the question was one of fact for the jury, and that the dismissal of the complaint by the trial court was error, and in its opinion approved the rule as laid down by Mr. Justice Andrews in Rounds v. D., L. & W. Ry. Co., supra. In Peddie v. Gally, 109 App. Div. 178, 95 N. Y. Supp. 652, the Supreme Court of New York, Appellate Division, Second Department, held: "Where defendant authorized his collector to go to plaintiff's rooms and take away furniture purchased by plaintiff, an assault committed on plaintiff by the collector while in plaintiff's rooms to get the furniture was committed in the course of his employment, and defendant was liable therefor." The Supreme Court of New York in the late case of Griffith v. Friendly, 30 Misc. Rep. 393, 62 N. Y. Supp. 391, in its opinion says: "It is contended by the learned counsel for the defendants that the master cannot be held liable for the personal injuries to the plaintiff inflicted by his servants. If the master in this case authorized his servants to take the property in question from the plaintiff, and through lack of judgment or discretion they went beyond the strict line of their duty or authority, and inflicted a personal injury upon her, the master is liable. Cohen v. Railroad Co., 69 N. Y. 173; Rounds v. Railroad Co., 64 N. Y. 1° 21 Am. Rep. 597." In Levi v. Brook, 121 Mass. 501, the learned Supreme Court of Massachusetts held: "A master who orders his servants to go to the house of a person named and remove certain furniture, if the sum due the master thereon is not paid, is liable for a willful assault committed by the servants, if done in the execution of the order, and not for some private end or advantage of the servants." Barden v. Felch. 109 Mass. 154. In Jackson v. Am. Tel. & Tel. Co., 139 N. C. 347, 51 S. E. 1015, 70 L. R. A. 738, the learned Supreme Court of North Carolina held: "A telephone company is liable for the act of its servant charged with the

duty of setting poles and stringing wires over a certain route in causing the arrest of a landowner along the route to get him out of the way in order that poles may be erected and wires strung over his property against his will." It will be observed that this case is in point for the reason that the unlawful arrest of the landowner was very analogous to the case at bar, of an assault made upon the servant of the landowner.

It is further contended by the appellant that the plaintiff's evidence does not support the verdict and judgment, but in our opinion this contention is untenable. The evidence fully sustains the allegations of the complaint, that the plaintiff was directed by Berit Pramhus to go and forbid the workmen from erecting the fence; that he did go and the workmen refused to desist, and continued the work; that he went back to the house and procured an ax and returned to the place where the workmen were engaged in erecting the fence, and not only forbade them from continuing the construction of the fence, but laid his ax upon the fence, and threatened, if they continued the work to destroy the fence as fast as it should be completed. In order, therefore, for the workmen to continue their work and construct the fence, it was necessary to forcibly resist the acts of the plaintiff, and in so doing it may be that more force was used than was necessary and that the plaintiff was unnecessarily injured, but this fact, as we have seen from the authorities, does not relieve the defendant from liability for the injury inflicted upon the plaintiff. We are of the opinion, also, that the evidence was sufficient to warrant the jury in finding that the workmen were employed by the defendant railroad company. The evidence clearly shows that the defendant railroad company was running the trains over the road, received the receipts for passenger and freight and the reports of the officers, paid the employés, and generally managed the affairs of the road. The fact that the road was constructed some years prior to the alleged assault by another company, and was formerly owned and operated by that company, was not material, as the defendant was in charge of the road, operating the same at the time of the alleged assault and the men constructing the fence were employed by that company and paid by it. This was sufficient to render the defendant liable in this action. Mr. F. M. Jones, called as a witness on behalf of the plaintiff, testified as follows: "I live at Watertown, S. D. I have lived there five years this coming August. I am agent for the Great Northern. I have been in that position ever since I came here. The road runs southwest of here to Huron. I have always called the road between Watertown and Huron the Great Northern. Our transportation over that line west from Watertown is sold over the Great Northern. The waybills are marked Great Northern first line on the top, and in smaller

letters the bills are marked, Duluth, Watertown & Pacific. When we bill freight West, we bill it the same. I think it is the same as Huron. We make our report to the Great Northern Railway Company at St. Paul, and get them back from the same. I get my pay from the same. This section gang draws its pay from the Great Northern Railway. It drew its pay January 1, 1903, the same as it does now. I think I know Henry Doust. I knew him in January, 1903. His position with the company at that time was section foreman. I think Henry Doust was section foreman in 1903. That crew worked through Watertown to one mile east of Grover. Doust draws his pay from the Great Northern the same as other crews." It clearly appears from the evidence that Pramhus' land was west of Watertown, and within the section in which Doust was foreman.

The contention of appellant that no express authority was shown in the foreman to construct this fence by the defendant company, and that, therefore, it is not liable, is untenable. It is sufficient for the plaintiff to show that the foreman or the section boss on the road was directing the work and giving orders to the men under his charge to erect the fence. The reasonable and fair inference from these facts which the jury was authorized to draw was that the section boss was performing his duties under the direction of the defendant.

The court in its charge to the jury stated the rule of law applicable to this case very fairly and clearly, and under the evidence and the charge of the court we are of the opinion that the verdict of the jury was fully justified.

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

PHELAN v. NEARY.

(Supreme Court of South Dakota. June 24, 1908.)

1. TRIAL RECEPTION OF EVIDENCE-CONTRACT STATUTE OF FRAUDS.

In a suit to specifically enforce a contract for the sale of land alleged to have been entered into by correspondence, evidence offered by plaintiff of a conversation had with defendant as a result of the letters, and concerning the terms of the sale, is not as tending to show the circumstances surrounding the transaction, and to enable the court to give the proper construction to the letters, where at the time no letters had been introduced in evidence, and no offer made on the part of plaintiff of what he expected to prove.

2. FRAUDS, STATUTE OF-PAROL EVIDENCESUPPLYING DEFECTS IN CONTRACT.

Oral evidence is not admissible to supply defects in a written contract, which by the statute of frauds is required to be in writing. [Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, § 375.] 3. SAME SALE OF LAND WRITING EVIDENCE.

NECESSITY OF

In a suit to specifically enforce an agreement for the sale of land, alleged to have been

4. VENDOR AND PURCHASER-OFFER AND AC

CEPTANCE-EVIDENCE-SUFFICIENCY.

In a suit to specifically enforce a contract for the sale of land alleged to have been entered into by correspondence, evidence considered, and held to support the court's finding that there was no specific contract of sale in any writing or memoranda signed by defendant, and that there was no writing showing mutual agreement between the parties, or any proposition by the plaintiff which was accepted by the defendant in writing for the purchase and sale of the land, and that there was no agreement as to the price to be paid for the same, and that the offers of the plaintiff contained in his letters to the defendant were never accepted by defendant.

5. SPECIFIC PERFORMANCE-NATURE OF REMEDY-MUTUALITY OF CONTRACT.

As it is elementary that there can be no contract unless the minds of the parties have met and mutually agreed, specific performance will be denied where this requisite is lacking.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 108-112.] 6. SAME-CONSIDERATION-REASONABLENESS.

Where, in a suit to specifically enforce a contract for the sale of land, it appears that the amount of the offer of plaintiff was about $550, and the land was worth $1,600 specific performance will be denied under Rev. Civ. Code, § 2345, providing that specific performance cannot be enforced against a party to a contract in any of the following cases: First, if he has not received an adequate consideration for the contract; second, if it is not as to him just and reasonable.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 140-152.]

Appeal from Circuit Court, Hyde County. Suit by John Phelan against Maggie Neary to specifically enforce a contract for the sale of land. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.

M. C. Cunningham (Gaffy & Stephens, of counsel), for appellant. John Pusey and S. V. Ghrist, for respondent.

CORSON, J. This action was instituted by the plaintiff to enforce the specific performance of an alleged contract on the part of the defendant to sell to him a quarter section of land in Hyde county. The complaint is in the usual form, and the defendant by her answer denied all the allegations contained in the same, except the allegation that she is the owner in fee of the premises described in the complaint. Findings and judgment being in favor of the defendant, the plaintiff has appealed.

Practically only three errors are assigned, viz.: (1) That the court erred in excluding and striking out certain evidence on the part of the plaintiff; (2) that the court's second finding is not supported by the evidence and

At the opening of the trial, the defendant demanded of the plaintiff to produce the agreement alleged in the complaint or a copy of it, to which the attorney for plaintiff replied: "We have no formal contract.

It is simply based upon correspondence." Thereupon the plaintiff was called as a witness, and testified as follows: "I had a conversation with this defendant. I received a letter. In accordance with that letter I went to Rock Valley, where the defendant lives, and spoke to her about the matter that she wrote me about. We have been in communication-several letters-and we came to the conclusion then and there about the sale of her quarter section of land for a certain figure. It was $300. She was to give me a deed to a quarter section of land." This conversation was objected to, and a motion made to strike it out which was granted by the court, to which ruling the plaintiff accepted. Plaintiff's counsel then said to the witness: "Just go on and state the conversation you had with defendant. A. Well, I am stating the conversation. I had already given her some money." This was objected to, and the objection sustained by the court. Counsel again said to the witness: "State the conversation that you had at that time as near as you can in the words in which it was carried on. A. We went over the correspondence between us and letters, and I told her I had already written to her about matters, and I wished to have this matter settled, and she seemed to be anxious to have it settled." This was also stricken out on the motion of defendant's counsel. The witness then proceeded: "I told her that I would be desirous of having a written agreement, and I made a memorandum binding myself to do certain things in regard to the matter, and described the property we mentioned and the figure that would be necessary to have a deed pass between us." This was stricken out on motion by the court. The witness further proceeded in his attempt to give the terms of the contract between himself and the defendant, all of which was excluded by the court.

It is contended by the appellant that this evidence on the part of the plaintiff was competent and admissible, for the reason that it tended to show the circumstances surrounding the transaction, and would enable the court to give a proper construction to the letters subsequently to be introduced in evidence. But at that time no letters had been introduced in evidence, no offer made on the part of the plaintiff of what he expected to prove, and there was therefore nothing before the court that required any interpretation or construction on its part. Hanson v. Red Rock Township, 7 S. D. 38, 63 N. W. 156; Tootle v. Petrie, 8 S. D. 19, 65 N. W. 43. The evidence was also clearly inadmissi