mutual promises of the parties, said parties the judgment on two grounds: First, because should bid at said auction sale not to exceed the contract is void under the statute of the sum of one hundred twenty thousand dollars ($120,000), and should buy the said stock frauds (section 2308, Stats. 1915), and the of merchandise and said store fixtures; pro- uniform sales act (section 1684t[4], Stats. vided, the same could be bought for not to ex- 1915); and second, because the contract is ceed said sum, and that such bids were to be nudum pactum, and no part of the same havmade and such stock and fixtures_purchased for the joint benefit of both parties. It was fur- ing been executed, and the plaintiffs not ther mutually understood and agreed, that if having been placed at a disadvantage by the parties, or either of them, were successful the repudiation thereof, no recovery can be bidders and said stock and fixtures were pur- had. Though the court disposed of the case chased by them, or either of them, each of said parties should contribute one-half of the amount on the second ground, counsel for defendant, of the bid upon which said stock and fixtures if we understand them correctly, place more were purchased; that the store fixtures should reliance upon the first ground stated. They be taken by the plaintiffs at fifty per cent. of the argue that the complaint presents a case inventory value thereof; that the men's clothing and men's shoes should be sold in bulk, and the where joint owners agree to sell to one of the money realized from the sale thereof equally di- joint owners part of the property at a fixed vided; that said Roth Brothers Company should price, and that such agreement comes within be assigned and should take all the ladies' and children's shoes, and all the house furnishings; the statute of frauds and the uniform sales that plaintiffs should be assigned and take all act, and is therefore void. The only case the cloaks, suits and furs, and that the balance cited as being directly in point is Mace v. of said stock should then be divided between the Heath, 30 Neb. 620, 46 N. W. 918. The sylparties pro rata. That relying upon the promises and agreements of the defendant aforesaid, labus sustains the claim made, but the facts plaintiffs made arrangements to obtain the nec- of the case do not. There is a fatal variance essary amount of money, and to carry out the between the two. The syllabus states: contract on their part, and, on the day of said sale, and before and at the hour set for the same, appeared at the place at which said sale was advertised to be made, ready and willing to carry out and perform the aforesaid contract on their part. That the defendants, then and there, repudiated said contract, and refused to perform the same, and the said defendants, then and there, bid on said stock and said fixtures at said auction sale, and were the successful bidders thereat, and purchased the said stock and the said fixtures at said sale for the sum of $101,750, and wholly refused to carry out said contract or to assign or transfer to the plaintiffs said store fixtures and the portion of said stock which it was agreed should be assigned to plaintiffs, or any part thereof, but, on the contrary, said defendants retained the whole of said property for their sole benefit and profit, contrary to the terms of the agreement aforesaid." "A verbal contract to engage in the business of purchasing five carloads of baled hay, and dividing the same with the defendants, the value being in excess of $50, no part of the hay being delivered, nor any portion of the consideration paid, is within the statute of frauds, and void." The facts as stated in the opinion are that the defendant in error entered into an oral agreement with the plaintiffs in error to sell and deliver to them five carloads of hay, which was to be purchased by him and shipped in his name. In a counterclaim they ask damages for the breach of such oral contract. Obviously an unexecuted oral contract by A. to sell to B. and C. hay of the value of more than $50 is void under the statute of frauds. There was no joint ven Plaintiffs demand judgment in the sum of ture or partnership feature about the trans$26,405.68. At the opening of the trial plaintiffs' counsel stated that the contract was oral; also, that the defendant on the day of the sale and before the bidding began notified plaintiffs that it repudiated the contract. But he further stated: "They (plaintiffs) came there ready to carry out their agreement and at the last second were put in a position not to be able to take care of themselves." The parties agreed that the statements of plaintiffs' counsel that the contract was oral, and was repudiated by defendant before sale, should be considered by the court in ruling upon a demurrer ore tenus to the complaint. The court sustained the demurrer upon the ground that the alleged contract was nudum pactum, and from a judgment dismissing the action the plaintiffs appealed. W. P. Crawford and Grace, Hudnall & ent. appellants. VINJE, J. (after stating the facts as above). [1] The defendant seeks to sustain action. It was simply an oral agreement by one party to sell hay to two parties. The case of Wiley v. Wiley, 115 Md. 646, 81 Atl. 180, Ann. Cas, 1913A, 789, relied upon by the defendant, was one where two parties orally agreed to jointly farm a certain tract of land to be purchased; to apply the profits on the purchase price, and when the tract was paid for each should receive a deed of a one-half interest therein. The grantor deeded to one of the parties, and the other brought an action against his copartner for specific performance. The court held he was not entitled thereto as his oral agreement was void under the statute of frauds requiring an agreement for an interest in land to be in writing. The court, however, awarded him compensation for the value of his share of the profits with interest. The case of Green v. Drummond, 31 Md. 78, 1 Am. Rep. 14, is very similar in its facts. Both cases were held to be within the statute because an interest in land was sought to be enforced through an oral agreement. The present case is not such a one. It is more like that of Bullard v. Smith, 139 Mass. 492, 2 N. E. 86, in which it was held that an oral agree-, was held that the statute did not apply bement to share equally in the profits and loss-cause there was no sale from one to the othes resulting from the purchase and sale of ers but merely a divsion of interests growstock already owned by one of the parties to ing out of a joint purchase. For somewhat the agreement was not within the statute of analogous cases held not to be within the frauds. In Mason v. Spiller, 186 Mass. 346, statute, see Smith on Law of Fraud, § 373 71 N. E. 779, an oral agreement between par- subd. "e." ties for a division of the remaining partnership property was held not to be within the statute because there was no contract of sale. So, also, in Bogigian v. Hassanoff, 186 Mass. 380, 71 N. E. 789, it was held that an oral agreement between the owner of goods and one who had advanced money on them that they should be sold by the combined efforts of the parties on terms and conditions agreed upon, and the proceeds applied to compensating the lender to the amount advanced, and the balance to go to the owner, was not within the statute of frauds. In Mygatt v. Tarbell, 78 Wis. 351, 47 N. W. 618, it was held that an agreement between two execution creditors, each of whom claimed priority in his levy upon certain property, to allow it to be sold under one execution and to divide the proceeds equally, was not void under the statute of frauds as a sale of the property. The same was held in Hunt v. Elliott, 80 Ind. 245, 41 Am. Rep. 794, where two mortgagors of personal property orally agreed that one should bid it in at a judicial sale and dispose of it for the benefit of both. It will be seen from the preceding cases that, wherever there has been an oral agreement to buy jointly, it has been held not to be within the statute, irrespective of whether the joint property so bought was to be sold and the proceeds divided, or the property itself divided in specie. In the case at bar the agreement is for both kinds of division. The fact that as to some of the property the inventory value is to measure its division value does not change the agreement from one of division to one of sale. The parties do not stand in the relation of seller and buyer. They agree to buy jointly and to divide what they buy. The argument of defendant's counsel that the cases involving a partnership relation were so decided because the general partnership agreement determined the share each was to take upon a division does not seem to be borne out by the cases themselves. In each of them the oral agreement contained the terms of division, and it was this agreement, together with that of joint purchase, that was held valid. The conclusion we reach both upon principle and authority is that the oral agreement pleaded is not within the statute of frauds (section 2308, Stats. 1915), nor within the uniform sales act (section 1684t[4], Stats. 1915). [2] It is quite evident that the agreement was not nudum pactum. The consideration was a promise for a promise. Plaintiffs agreed to furnish one half the purchase price and the defendant to furnish the other half. Such promises were performable, concurrent, and mutually binding upon both parties at the same time. This satisfies the call of the law. Hopkins v. Racine M. & W. I. Co., 137 Wis. 583, 119 N. W. 301; 6 R. C. L. 676 et seq. An oral agreement for the joint purchase of a sloop is not within the statute of frauds. Reaves v. Goff, 3 N. J. Law, 609. So an oral agreement to purchase property at the request of another, hold it, and upon being reimbursed for his expense and trouble transfer it to the other, is not within the statute because it is not an agreement to sell from one to the other. Blair v. Lynch, 20 Wkly. Dig. (N. Y.) 575. This case was reversed upon another ground by the Court of Appeals in 105 N. Y. 636, 11 N. E. 947, where the question of the statute of frauds is not discussed. In Colt v. Clapp, 127 Mass. 476, 480, it is stated that the statute, of frauds relative to the sale of goods of the value of $50 or more is applicable only to contracts between seller and buyer. This rule was recognized by our court in Brown v. Slauson, 23 Wis. 244, where it was held that since the oral agreement between plaintiff and defendant was that the latter should buy a boat and afterwards sell plaintiff a quarter interest therein, and not, as contended by plaintiff, an oral agreement for a joint purchase of the specified interests, it was void under the statute of frauds. A like ruling was made in Lewin v. Stewart, 17 6 R. C. L. 811, and cases cited. How. Prac. (N. Y.) 5, where it was unsuccess- [4] The claim that plaintiffs were not put fully sought to show that the purchase of cot-to a disadvantage by a breach of the contract ton was a joint purchase instead of a pur- on the day of the sale is not sustained by the chase by one and a resale to the other. But allegations of the complaint charging that in Dodge v. Clyde, 7 Rob. (N. Y.) 410, where it was necessary for them to make financial it was shown that three parties were jointly arrangements for one-half the purchase price, interested in the purchase of a ferryboat, it and the oral statement of their counsel that [3] The agreement to buy jointly at the public sale was valid. This was a sale of a large stock, and it must be presumed, from the allegations of the complaint to the effect that it was necessary for plaintiffs to make arrangements to procure one-half the purchase price, that they could not handle the stock alone. Agreements to bid jointly at a public sale, if not made for the purpose of chilling or suppressing bidding, are valid. Hunt v. Elliott, 80 Ind. 245, 41 Am. Rep. 794; they were advised of the breach at the last second when they were not able to take care of themselves. Upon a demurrer ore tenus these allegations and statements of counsel, which the parties agreed might be considered, prima facie show damage. Judgment reversed, and cause remanded for further proceedings according to law. the lumber pile caused injuries to the employé's head producing a disability from the date of the accident to the time of the agreement. When injured he was receiving $10.50 per week. He has been paid, as compensation under the Workmen's Compensation Act $88.66 for the period from January 27th, 1914 to April 27th, 1914. He has also received medical and surgical treatment, medicines and surgical supplies and apparatus as required, for the ninety days subsequent to MENOMINEE BAY SHORE LUMBER CO. the injury. There is a dispute between him v. INDUSTRIAL COMMISSION OF (Supreme Court of Wisconsin. Feb. 1, 1916.) 1. MASTER AND SERVANT 250, New, vol. 16 Key-No. Series-INDUSTRIAL COMMISSION -PROCEEDINGS GUARDIANS AD LITEM-NECESSITY OF APPOINTMENT "COURT." The Industrial Commission is an administrative body, and not a court, so that a minor need not have a guardian in order to institute proceedings for workmen's compensation be fore it. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Court.] 2. MASTER AND SERVANT 250, New, vol. 16 Key-No. Series-INDUSTRIAL COMMISSION -GUARDIAN AD LITEM-NECESSITY OF APPOINTMENT. In proceedings before the Industrial Commission by a minor for workmen's compensation, no guardian is necessary, since St. 1915, § 2394-7, subd. 2, provides that minors legally permitted to work subject to the Workmen's Compensation Act (St. 1915, 88 2394-1 to 2394-96) shall have the same power of contracting, for the purposes of the act, as adult employés. and his employer as to whether he is still disabled so that he cannot return to the em ployment at which he was working at the time of the accident, and it is desired by both parties that the dispute be compromised and settled. The recitals were followed by an agreement that the Industrial Commission might enter an award in a lump sum, on the statement of facts, that the employer pay Schmidt $54.56 in addition to the $88.66 previously paid. The instrument was filed with the Industrial Commission and it made an award accordingly, which was, in due form, satisfied on the first day of June, 1914. In the proceedings aforesaid, Schmidt was not represented by a guardian of any sort, but was represented by an attorney. He could not read or write English; but the agreement he made was explained to and understood by him. On September after the satisfaction aforesaid, Schmidt, represented by a general guardian, filed an application for compensa 3. MASTER AND SERVANT 2504, New, vol. 16 Key-No. Series-INJURIES TO SERVANT-tion for the injury settled for as aforesaid. LIABILITY WORKMEN'S COMPENSATION VACATION OF AWARD-PROCEEDINGS. While an award of compensation to an injured servant can only be disturbed by action for review within 20 days of the award, on the ground that the commission exceeded its powers, or that the award was procured by fraud, or that the findings of fact do not support the award, as provided by St. 1915, § 2394-19, a compromise of a claim may, as provided by section 2394-15, be set aside, modified, or confirmed within one year of such compromise, so that, where a compromise was agreed upon and confirmed without a hearing, it could be set aside within one year, though the minor claimant proceeded in the second instance as if making an original claim. Appeal from a Judgment of the Circuit Court for Dane County; E, Ray Stevens, Circuit Judge. Affirmed. Action to set aside an award made by the defendant, Commission, in favor of defendant Schmidt. Defendant, Schmidt, a minor 18 years of age, while in the employ of plaintiff, on the 26th day of January, 1914, fell off a lumber pile and was injured. The provisions of the Workmen's Compensation Act applied to the matter. The accident was duly reported to the Industrial Commission, and the age of the injured person stated. He was paid some compensation and later made an agreement in writing with plaintiff, reciting the matters aforesaid and the following: The fall from In such application, disability in the neck and back was claimed, whereas the disability mentioned in the settlement was to the head. The matter was duly heard before the Commission, it being insisted on behalf of the applicant that he was not bound by the award or the stipulation therefor because he was not represented in the proceedings by a guardian, and in opposition thereto that such award was binding because a guardian in such proceedings is not essential. The Commission decided that its previous finding, based on the stipulation for settlement, was erroneous; but that an award in favor of a minor upon facts found in a regular hearing is conclusive, whether the minor is represented by a guardian or not, but that a minor cannot bind himself by an agreement that a certain sum will fully compensate him for all disability resulting from an injury when the facts are otherwise, and that an award made on such an agreement does not preclude the Commission from entertaining an application for further compensation in accordance with the actual facts. Upon proofs submitted, the Commission exonerated plaintiff from any intention to over-reach its employé in making the compromise agreement, and awarded additional compensation. The second award was affirmed by the cir For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MARSHALL, J. [1, 2] The Industrial Commission is not a court. It is an administrative body, merely. No authority is cited to our attention, and we are unable to find any, that a guardian is jurisdictionally essential to proceedings in behalf of a minor by such a body, in the absence of a statute requiring it. The Workmen's Compensation Act makes no such requirement. It seems to contemplate that a minor, the same as an adult, may make application to the Industrial Commission to determine the compensation which should be awarded in case of his receiving a personal injury under such circumstances as to warrant a recovery therefor by proceedings before such Commission. He need not, necessarily, be represented by a guardian. Sec. 2394-7, subsection 2, Stats., provides that minors "who are legally permitted to work under the laws of the state" "for the purposes of Sec. 2394-8, shall be considered the same and shall have the same power of contracting as adult employés." It is quite significant that minors, mentioned, for the purposes indicated, are not only empowered to contract to the same extent as adults, but are, for all such purposes, to be considered the same as adults. That is a pretty plain legislative declaration that a guardian to represent a minor, in matters within the jurisdiction of the Industrial Commission under the Workmen's Compensation law, is not essential. Sec. 2394-8, referred to in subsection 2 aforesaid, provides that any employé, as defined in such subsection "shall be deemed to have accepted, and shall, within the meaning of Sec. 2394-3, be subject to the provisions of Secs. 2394-3 to 2394-31, inclusive," in cases which include the one question. Thus the entire Workmen's Compensation Act is covered, as the sections referred to are all there is of it. Nothing further need be said to show that there was no fatal infirmity in the first award from the mere fact that respondent, Schmidt, was not represented before the Commission by a guardian. That is in harmony with Foth v. Macomber & Whyte Rope Co., 154 N. W. 369, 371. [3] Appellant's counsel suggest that, regardless of whether the Commission errs, jurisdictionally or otherwise, in deciding an application for compensation, its action can only be disturbed by proceedings under Sec. 2394-19, Stats., which provides that such a determination shall be subject to review only by action commenced within twenty days from its date in the circuit court for Dane County; and shall be set aside only ed without or in excess of its powers," or upon the ground that "the Commission act"the order or award was procured by fraud," do not support the order or award." It is or "the findings of fact by the Commission considered that such section must be read in connection with Sec. 2394-15, Statutes, which provides that "every compromise of any claim for compensation, under Secs. 2394-3 to 2394-31, inclusive, shall be subject to be reviewed by, and set aside, modified, or confirmed by the Commission upon application made within one year from the time of such compromise." That contemplates, in general, that compromises of disputes concerning compensation, subject to the power of the Commission to set aside, modify or confirm the same within the time indicated, as to minors, who are within the scope of the Workmen's Compensation Act, are to be considered the same as others; that competency to compromise, subject to the indicated control by the Commission, applies to one class the same as to the other. Counsel for appellant contends that the first award was confirmatory of the compromise and exhausted the power of the Commission under Sec. 2394-15 aforesaid. Counsel for respondents contend that the application which resulted in the second award was, in effect, a request for a review and vacation of the compromise and that the proceedings which resulted in the first award were, in no sense, such a review as the statute contemplates. We incline to that idea. Such statute clearly provides for a hearing on application therefor in respect to the validity or justice of a compromise. There was no such hearing in this case when the first award was made. There was only a mere formal award, following the stipulation of the parties. Whether it was just or not was evidently not thought of. The later application, in practical effect, called for such a review and a decision was made, in effect, that the compromise agreement was unjust to the extent remedied by the second award. The challenge of the compromise was made in time and it matters not that it was in the form of an application for an original award. The result is that the judgment appealed from should be affirmed upon the ground that the second award was, in reality, the result of exercise of the Commission's power to set aside a compromise. The Commission has very broad power in that field, enabling it to protect minors or others who may, through mistake, make an improvident settlement. We thus treat the matter the same as if respondent, Schmidt, were an adult. The judgment is affirmed. DAGAN v. STATE. words or phrase immediately preceding, and are not to be considered as extending to or including others more remote, unless such exten(Supreme Court of Wisconsin. Feb. 1, 1916.)sion is clearly required by a consideration of INDIANS 34-INTOXICATING LIQUOR-OF- the entire act.' FENSES. St. 1915, § 1567, declares that no person shall sell intoxicating liquor to any Indian or any mixed-blood Indian, except civilized persons of Indian descent not members of any tribe. The statute, as originally enacted, made it an offense to sell intoxicants to any Indian, and on re-enactment in its present form the exception was added. Held, that sale of intoxicants to a full-blood Indian not a member of any tribe is prohibited, the exception extending, under the rule of the first antecedent, only to mixed-blood Indians. [Ed. Note. For other cases, see Indians, Cent. Dig. § 60; Dec. Dig. 34.j Error to Municipal Court of Brown County; N. J. Monahan, Judge. Michael Dagan was convicted of having sold intoxicating liquor to an Indian, and he brings error. Affirmed. Kittell & Burke, of Green Bay, and Dennison Wheelock, of De Pere, for plaintiff in error. W. C. Owen, Atty. Gen., Walter Drew, Deputy Atty. Gen., and M. E. Davis, of Green Bay, for the State. KERWIN, J. The plaintiff in error was convicted of having sold intoxicating liquor to one Chas. Wheelock, an Indian, contrary to the provisions of section 1567, Stats. The judgment of conviction was brought here for review by writ of error. Section 1567 reads: "No person shall sell, barter, give or in any manner dispose of any intoxicating liquor to any Indian or to any mixed-blood Indian, except civilized persons of Indian descent not members of any tribe; and every person so offending shall for each offense be punished by a fine not exceeding one hundred dollars or by imprisonment in the county jail not exceeding three months, or both." Under the foregoing statute it is the contention of counsel for appellant that, if Chas. Wheelock was not a member of any tribe of Indians, there should have been a verdict of not guilty. On the part of the respondent it is argued that, Chas. Wheelock being a fullblood Indian, the sale of intoxicating liquor to him was within the prohibition of the statute, whether he was a member of a tribe or not. The argument of the respondent is that the statute makes two classes, first, fullblood Indians, and, second, mixed-blood Indians, except civilized persons of Indian descent not members of any tribe, and that the clause "except civilized persons of Indian descent not members of any tribe" modifies the phrase next preceding it, "to any mixedblood Indian," and does not refer to or affect the phrase "to any Indian." In Zwietusch et al. v. Village of East Milwaukee, 154 N. W. 981, 982, this court quotes from 36 Cyc. 1123j, as follows: "By what is known as the doctrine of the last antecedent' relative and qualifying words, phrases, and clauses are to be applied to the See, also, 2 Lewis' Sutherland, Stat. Const. (2d Ed.) §§ 420, 421; Jorgenson v. Superior, 111 Wis. 561, 87 N. W. 565. There is nothing in the statute in the instant case which requires a different construction. On the contrary, the history of the legislation on the subject supports such construction. When this statute was first enacted (chapter 30, Laws Rev. St. of 1849), it prohibited the sale of intoxicating liquor to "any Indian." Section 1 provided: "If any person shall sell, barter, give, or in any manner dispose of any intoxicating drink to any Indian within this state, he shall forfeit for every such offense the sum of fifty dollars, to be recovered by any person who will sue for the same in his own name, in an action of debt, before any justice of the peace of the county in which the offense shall be committed." The statute was re-enacted in the statutes of 1858 (chapter 36). In Revised Statutes of 1878, § 1567, the statute in its present form was enacted. So it seems that the Legislature by the amendment intended to leave the prohibition against selling intoxicating liquor "to any Indian" as it existed before the amendment and to add to the statute by the amendment a prohibition against selling intoxicating liquor to such mixed-blood Indians as were not civilized persons of Indian descent or members of any tribe. In People v. Gebhard, 151 Mich. 192, 115 N. W. 54, 14 Ann. Cas. 208, it was held that the phrase "nor to any person of Indian descent" in a statute prohibiting the sale of intoxicating liquor was not synonymous or coextensive with the words "nor to any Indian." The fundamental rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature. From the light which the context affords, in connection with the history of the legislation, the court is of opinion that the construction placed correct and expresses the intention of the upon the statute by the Attorney General is Legislature, namely, that the statute prohibits sale of intoxicating liquor to all fullblood Indians. This construction seems to be in harmony with decisions touching the subject. People v. Gebhard, 151 Mich. 192, 115 N. W. 54, 14 Ann. Cas. 208; People v. Bray, 105 Cal. 344, 38 Pac. 731, 27 L. R. A. 158; Farrell v. United States, 110 Fed. 942, 49 State v. Wise, 70 Minn. 99, 72 N. W. 843; C. C. A. 183. It is without dispute that Chas. Wheelock was a full-blood Indian; hence the sale to him was prohibited by the statute whether he belonged to a tribe or not. It follows that the judgment below must be affirmed. The judgment is affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |