Dahlman v. Milwaukee, 130 Wis. 468.

any question of retroactive legislation, since the re-assessment statutes existed at the time the contract involved was made and form a part thereof as effectively as if referred to therein. We should say in passing that it is not intended by this to suggest that the right of the respondent would be different if the situation were otherwise.

The right of respondent being as indicated, the judgment complained of goes no further than to fully vindicate it. The court in accordance with settled principles of equity jurisprudence, as embodied in sec. 2610 and sec. 2883 of the Statutes, determined the ultimate rights of defendants between themselves and granted the proper affirmative relief prayed for by a proper pleading under sec. 2656a of the Statutes.

The result of the foregoing as a rule is this: In case of an invalid determination of the net benefits accruing to a parcel of land abutting on a street by reason of the improvement of such street, the cost of the improvement being payable to the contractor, to the extent of the net benefits to such property, by a special assessment certificate issued against the same and the balance by the municipality, and the work having been done and a proper certificate, in form, issued to the contractor, and the owner of the land commencing an action to set aside the certificate because of failure of the municipal authorities to properly ascertain the net benefits to his land,—the owner of the certificate should be made a party defendant and the rights of the plaintiff as to the defendants and the rights of the latter as between themselves should be settled by the final decree, and in case of its being determined, in the manner provided by law, that the amount charged for the improvement against the plaintiff's property is excessive, and the excess determined, judgment therefor should go against the municipality in favor of the contractor, if properly claimed by the latter's pleading. Such was the course pursued in this case. By the Court. The judgment is affirmed.

Steffen v. Supreme Assembly of Defenders, 130 Wis. 485.

STEFFEN, Appellant, vs. SUPREME ASSEMBLY OF THE DEFENDERS, Respondent.

January 8-January 29, 1907.

Compromise and settlement: Impeachment: Trial: Direction of verdict: Fraud: Mistake: Appeal and error: Review.

1. An agreement of settlement expressed in a written release is a complete defense unless impeached for fraud or mistake. 2. To accomplish impeachment of a formal written instrument on the ground of fraud or mistake the proof must be clear and convincing beyond reasonable controversy.

3. A writing, and testimony offered by a defendant, showing that plaintiff deliberately and with full knowledge entered into an agreement to settle plaintiff's claims, is not enough to warrant the direction of a verdict in defendant's favor if plaintiff's evidence, standing alone and undisputed, can, within reason, be deemed sufficient to prove with the requisite clearness and conclusiveness that the signature to the writing was induced by fraud or mistake.

4. Plaintiff's testimony, upon which alone her case in respect to an alleged compromise and settlement of a claim under a benefit certificate rested, was to the effect that the president of defendant benefit society told her that he had information showing that statements of deceased as to freedom from consumption, from which he afterwards died, were false, and that, as a lawyer, he did not believe any fair jury would award her anything;. that the defendant was not liable to her at all, but that he was willing to give her $100 as a present; that though she at first demurred she finally assented, and that thereupon the president drew or dictated a paper, went with her to a bank, got the money and told her to sign the paper, which she did without reading it, supposing it to be a mere receipt for the $100. Held, that the evidence, though given the fullest credit, did not justify a finding by the jury that plaintiff's signature to the writing was induced either by fraud or mistake in the legal sense: (1) not by fraud, for there was no misrepresentation to her as to the terms of the writing; (2) not by mistake, for the law does not allow a plea of mistake as to the contents of a written instrument which the signer has full opportunity to read but neglects to, unless deterred by some act or representation of the other party.

5. In such case the evidence is held, at most, to indicate that the prior negotiations and conversations proceeded upon the basis

Steffen v. Supreme Assembly of Defenders, 130 Wis. 485.

of a gift instead of a settlement, but that all such negotiations became merged in the written expression of the agreement finally executed, which became the conclusive and exclusive proof of the contract upon which the minds of the parties met and to which they were bound.

6. Where a defense is conclusive in favor of the judgment sought to be reviewed, whether or not errors were committed in ruling upon other issues in the cause, and assignments of such errors, need not be considered.

APPEAL from a judgment of the circuit court for Dane county: B. F. DUNWIDDIE, Judge. Affirmed.

Action upon a benefit certificate held by plaintiff's deceased husband in defendant association. Defense, fraud in application of the assured in representing himself in good health and free from pulmonary trouble, when, in fact, at the time of the application he was suffering from tuberculosis, from which he died six months later. Also, a settlement and written release after the death and after proofs of loss by the plaintiff. The trial court directed a verdict for the defendant, without indicating which of the defenses he found conclusively sustained by the evidence. From judgment upon such verdict the plaintiff appeals.

For the appellant the cause was submitted on the brief of F. K. Shuttleworth, and for the respondent on that of Smith & Rogers.

DODGE, J. The agreement of settlement expressed in the written release is, of course, a complete defense unless impeached for fraud or mistake. Jackowski v. Ill. S. Co. 103 Wis. 448, 79 N. W. 757; Kowalke v. Milwaukee E. R. & L. Co. 103 Wis. 472, 480, 79 N. W. 762. To accomplish impeachment of a formal written instrument on such grounds the proof must be clear and convincing beyond reasonable controversy. Linde v. Gudden, 109 Wis. 326, 85 N. W. 323; Meier v. Bell, 119 Wis. 482, 485, 97 N. W. 186; Burnham v. Burnham, 119 Wis. 509, 513, 97 N. W. 176; Bowe v.

Steffen v. Supreme Assembly of Defenders, 130 Wis. 485.

Gage, 127 Wis. 245, 251, 106 N. W. 1074. The paper itself, and the testimony offered by defendant, show that plaintiff deliberately and with full understanding entered into an agreement to settle her claims for the sum of $100, but this is not enough to warrant the direction of verdict if plaintiff's evidence, standing alone and undisputed, can, within reason, be deemed sufficient to prove with the requisite clearness and conclusiveness that her signature to the writing was induced by fraud or mistake. Her testimony, upon which alone her case in this respect rests, was to the effect that the president of defendant told her that he had information showing that statements of deceased as to freedom from consumption were false, and that, as a lawyer, he didn't believe any fair jury would award her anything; that the defendant was not liable to her at all, but that he was willing to give her $100 as a present. To this she made demur that defendant ought not to have received her husband into membership if it were not going to pay his insurance, but finally assented. Thereupon the president drew or dictated a paper, went with her to a bank, got the money, and told her to sign this paper, which she did without reading it, supposing it to be a mere receipt for $100. We agree with the trial court that this evidence, though given the fullest credit, could not have justified a finding by the jury that plaintiff's signature to the writing was induced by either fraud or mistake in the legal sense; clearly not by fraud, for there was no representation to her as to the terms of the writing; not by mistake, for the law does not allow a plea of mistake as to the contents of a written instrument which the signer has full opportunity to read but neglects to, unless deterred by some act or representation by the other party. Straker v. Phenix Ins. Co. 101 Wis. 413, 421, 77 N. W. 752; Deering v. Ioeft, 111 Wis. 339, 343, 87 N. W. 298; Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 413, 89 N. W. 538, 92 N. W. 246. Plaintiff's evidence shows nothing of such acts. It at most indicates that the prior ne

Buhler v. Smith, 130 Wis. 488.

gotiations and conversation proceeded upon the basis of a gift instead of a settlement, but all such negotiations became merged in the written expression of the agreement finally executed, and that becomes the conclusive and exclusive proof of the contract upon which the minds of the parties met and to which they are bound. Conant v. Estate of Kimball, 95 Wis. 550, 70 N. W. 74; Jost v. Wolf, ante, p. 37, 110 N. W.

232.

The defense above considered is conclusive in favor of the judgment. Whether or not errors were committed in rulings upon the trial of other issues in the case, and assignments of such errors, needs no consideration.

By the Court.-Judgment affirmed.

BUHLER, Appellant, vs. SMITH, Executrix, Respondent.

January 8-January 29, 1907.

Landlord and tenant: Eviction.

1. Where a tenant, as part of his covenants, agreed to build a tobacco shed, and the landlord gave notice to a lumber dealer, with whom the tenant was negotiating for material for the shed, that he was the owner of the premises and would not pay for the material to be so furnished, the landlord was within his rights, and the fact that the lumber dealer thereafter refused to furnish and sell to the tenant the material under arrangements theretofore made did not prevent the tenant from securing the necessary material from the dealer upon other conditions, or from purchasing it in the open market.

2. Such acts on the part of the landlord did not constitute a breach of the lease or grounds for its abandonment by the tenant.

APPEAL from a judgment of the circuit court for Dane county: E. RAY STEVENS, Circuit Judge. Affirmed.

Plaintiff sues to recover for breach of a lease and option contract. It appears that on January 4, 1904, plaintiff made