in by March 7th, because it requested that this work be postponed until warm weather, and that it had made arrangements for doing the work at the proper time; and further, that it had consented to some slight modifications in the contract, and that the same was completed by March 7th, except as to painting and cement work, which had been arranged for. Defendant declined to pay his subscription, and on the following grounds defended an action brought to recover the same: 1. The contract was not assignable; 2. The factory was not completed when accepted; 3. The requisite fourteen thousand dollars had not been subscribed.

Failure to sustain these defenses is alleged as error, and error in rulings on evidence is also assigned.

The disposition of this appeal necessitates the consideration of the following questions: 1. Was the contract sued on assignable? 2. Was the question of its nonassignability raised by the pleadings? 3. Was the defendant precluded from insisting upon the defense of nonassignability?

1. It is established that the Industrial Construction Company 148 attempted to make an absolute assignment of its contract two days after its execution and before any work was done thereunder. The assignment is unqualified in its terms and is made without recourse, and the plaintiffs are suing as assignees claiming to have performed the work and furnished the materials used in the construction of the factory by virtue of the assignment and not as subcontractors. This contract obligated the Industrial Construction Company to build and equip a canning factory according to specifications attached to the contract that seem to be complete as to details. The performance of the work undoubtedly required skill and experience, and upon its proper execution the success of the enterprise might well depend. The assignees were wholly inexperienced in constructing plants of this character, while the assignor apparently followed the business of so doing. This contract manifestly imposed a liability upon the assignor of the plaintiffs, and involved a relation of personal confidence which the subscribers must have intended would be exercised by the party in whom they confided. In the construction of a complex plant, subscribers having no knowledge themselves as to how such a plant should be constructed would naturally prefer to make their contract with a party having the requisite knowledge and experience rather than with persons having neither. Good business judgment would dictate that such a course should be pursued. They had the right to select the

party with whom they would deal, and, when the selection was made and the contract was executed, there could be no substitution of contractors in the case before us without the assent of the subscribers. The authorities are quite uniform in holding that such a contract is not assignable by the contractor without the consent of the other party thereto : Arkansas Valley S. Co. v. Belden M. Co., 127 U. S. 379, 8 Sup. Ct. Rep. 1308, 32 L. ed. 246; Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Swarts v. Narragansett E. L. Co., 26 R. I. 388, 59 Atl. 77; Campbell v. Sumner Co., 64 Kan. 376, 67 Pac. 866; Edison 149 v. Babka, 111 Mich. 235, 69 N. W. 499; Winchester v. Davis P. Co., 67 Fed. 45, 14 C. C. A. 300; Worden v. Chicago & N. W. R. Co., 82 Iowa, 735, 48 N. W. 71; Craig v. Miller, 6 Ky. (3 Bibb) 440; 4 Cyc. 22, 23.

2. It is urged that the question of assignment is not before the court, because it is not put in issue by the pleadings. The complaint alleged the assignment of the contract sued upon. This was a necessary allegation because the plaintiffs depended on such assignment for their right to recover. The answer put this allegation in issue by a general denial. Since the plaintiffs relied upon the fact of assignment to prove any. cause of action at all, the general denial put the averment of assignment in issue.

"The general rule under the code is that any matter of fact alleged in the complaint which the plaintiff must estabfish to make out his cause of action may be disproved under a general denial": Hilliard v. Wisconsin L. Ins. Co., 137 Wis. 208, 117 N. W. 999, and cases cited.

It was incumbent upon the plaintiffs to prove a valid assignment in order to show that they had a cause of action, unless the assignment was admitted, which it was not. Their proof failed to show that they had a cause of action, because no valid assignment was shown. If it be claimed that the complaint itself failed to show a valid assignment and therefore did not state a cause of action, such defect is not waived by failure to demur: Stats. (1898), sec. 2654.

3. No facts were shown which would establish a ratification of the assignment by the defendant or an estoppel which would preclude him from denying liability. The defendant did not know that the contract had been assigned until after the plaintiffs claimed that the work had been completed and had secured a certificate from the executive committee to that effect. Neither did the other subscribers generally know of such assignment, and what evidence there is on the subject

tends to show that even the executive committee did not know 150 of the assignment until the certificate to the effect that the contract had been completed was given. Were this otherwise, the result would not be different. The authority given by the contract to the committee was not broad enough to empower it to make a substitution of parties thereto. Its powers do not seem to have been enlarged by the subscribers at any of the meetings held. It might be an interesting question whether such power could be conferred except by all parties in interest, but there does not appear to have been any attempt to confer it. Indeed, the right of the executive committee to act at all is, to say the least, doubtful. It was chosen by a minority of the shareholders at a meeting called under such circumstances that many of the subscribers were debarred from attending it by reason of the short time that elapsed between the date of the meeting and the mailing of the notice announcing it. The question, however, is not material to a disposition of the appeal.

It is unnecessary to consider other errors discussed.

By the COURT. The judgment of the circuit court is reversed, and the cause is remanded with directions to set aside the order directing a verdict in plaintiff's favor, and to grant the defendant's motion for a directed verdict in his favor, and for judgment dismissing the complaint.

Executory Contracts are Generally Assignable, except such as call for the performance of personal services or involve personal credit or trust; and this exception may be waived by the party for whose benefit it exists, and it does not apply when the contract is entirely objective in its nature and gives clear indication that the personality of the other party was in no way considered: Atlantic etc. R. R. Co. v. Atlantic etc. Co., 147 N. C. 368, 125 Am. St. Rep. 550. But if a contract calls for the performance of a demand purely personal in its nature, it cannot be assigned without the consent of the party benefited: Montgomery v. De Picot, 153 Cal. 509, 126 Am. St. Rep. 84.

DULUTH MUSIC COMPANY v. CLANCY.

[139 Wis. 189, 120 N. W. 854.]

INTERSTATE COMMERCE-Sale of Goods on Commission.Where goods are shipped by a resident of another state to his commission agent in Wisconsin, not in response to an order from a purchaser but to be held by the agent as part of his stock of commission goods in that state, a sale and delivery by him is not a transaction of interstate commerce; and the place of payment specified in the note given for part of the purchase money, though in another state, has no bearing upon the question whether the sale and delivery was an act of interstate commerce. (p. 1053.)

UNLICENSED CORPORATION-Validity of Contract.-A Conditional Sale of property, made by a resident agent of an unlicensed foreign corporation, followed by a change of possession and part payment, is void in behalf of the corporation but enforceable against it; and the corporation cannot assert that no contract exists, and recover the goods in replevin without tendering what has been received. (p. 1053.)

H. V. Gard, for the appellant.

Dietrich & Dietrich, for the respondents.

191 TIMLIN, J. The plaintiff, a foreign stock corporation engaged in the sale of pianos and musical instruments, and which had not complied with the requirements of section 1770b, Statutes (1898), and amendments thereunto, brought this action of replevin for a piano against the defendants. Its principal place of business is at Duluth, Minnesota, and it had a resident agent at Superior, Wisconsin, who was authorized to sell its pianos in the city of Superior. September 30, 1907, through this agent and at Superior, Wisconsin, the plaintiff sold and delivered to the defendants the piano in question for the agreed price of three hundred dollars, and received in part payment of the same from the defendants an organ valued at seventy-five dollars, and the defendants executed to the plaintiff at Superior, Wisconsin, on the same day a promissory note payable on or before May 30, 1910, for two hundred and twenty-five dollars, payable in installments at the rate of seven dollars per month beginning on October 30, 1907, and monthly thereafter until paid, with interest at six per cent per annum. At the same time there was executed by the defendants and delivered to the plaintiff's agent at Superior, Wisconsin, an instrument in writing, wherein it was expressly agreed that the title, ownership and right of possession in and to the piano did not pass from the plaintiff until the payments specified in the above-mentioned note and the interest thereon had been fully made. This

contract contained other provisions to the effect that in the event of failure or neglect to make the payments, or for other reasons specified, the plaintiff might declare the whole amount due and payable, and bring suit for the unpaid amount of the note, or might take possession of the piano and sell the same at public or private sale, crediting the net proceeds of sale on this note, and in this case all moneys paid on the purchase price of the piano should be retained by the plaintiff as liquidated 192 damages. This piano was shipped by the plaintiff to its resident agent in Superior some days before the sale thereof, and was by him unboxed, put in his place of business, and thereafter offered to defendants for sale, and sold and delivered to them in Superior, Wisconsin. A few days thereafter the plaintiff signed the conditional sale agreement on its part. Defendants made two payments aggregating fourteen dollars on the note, but no more. The plaintiff, before beginning replevin, demanded possession of the piano, which demand was refused. It did not return or offer to return the consideration received. One of the defendants is an infant and was the owner of the organ taken by plaintiff in exchange, and the other defendant, when the demand for possession of the piano was made by plaintiff, informed plaintiff it could have the piano if the organ was returned. The superior court concluded from the foregoing facts that at the time of the sale of said piano by the plaintiff to defendants and at the time of the execution of the contract of conditional sale the plaintiff could not lawfully transact business or acquire, hold, or dispose of property in this state, and that said contract of conditional sale was wholly void in plaintiff's behalf. He therefore adjudged a return of the piano with six cents damages to the defendants, or, in the alternative, judgment for two hundred dollars, its value, in case a return could not be had. The case was partly tried to a jury and covered by findings of the court, but no extended reference to that incident of the trial is necessary.

It is thought by appellant that the superior court erred in its conclusions of law based upon the facts above recited, and it contends that the transaction above detailed was one of interstate commerce and therefore valid, but that, even if the conditional sale contract is void, the title and right to possession remained in the plaintiff. Where goods are shipped by a resident of another state to his commission agent in this 193 state, not in response to an order from a purchaser, but to be held by such agent as the whole or part of his stock