count of obstructions, consisting of fences, wagons, woods, and other things; and they also asked Mrs. Bennett as to the location of the wagon at the time she observed the affray, and that she designated its position. This testimony was offered for the purpose of showing that the witnesses who testified to seeing the affray from the stoop could not possibly have seen it. To make such testimony admissible as impeaching evidence it must be first shown that the location and all the surroundings were in the same identical condition they were in when the occurrence about which the witnesses testified happened. This foundation was not laid in this case. Such testimony was commented on in Klanowski v. Railway Co., 64 Mich. 279, 31 N. W. Rep. 275. We think the testimony of these witnesses should have been excluded for the reason that it was not shown that no change had taken place in the surroundings of the location between the time when the affray occurred and the time when these observations were made. Errors are also assigned upon the charge of the court. We do not deem it necessary to discuss them, as the charge was eminently fair and proper, and stated the rules of law correctly. The other errors assigned are overruled. They are not of sufficient importance to discuss. The conviction must be set aside, and a new trial ordered. The other justices concurred.

WARDER, BUSHNELL & GLESSNER Co. v. WILLYARD.

(Supreme Court of Minnesota. July 10, 1891.) ADMISSIONS IN PLEADING-ALTERATION OF INSTRUMENTS.

1. Admissions found in an unauthorized pleading filed in justice's court may be considered and treated by the court in the nature of formal admissions made by the party upon the trial of the cause.

2. Where the holder of written security or evidence of a debt has altered or changed the instrument in a material part to his own advantage, and with intent to defraud his debtor, a recovery will not be permitted in any form of action. The fraudulent alteration of the instrument extinguishes the debt which it secured or evidenced.

3. Where an action is brought as on the original indebtedness in such a case, the alteration of the written security, or evidence of the debt, is presumed fraudulent, and the burden of the proof is upon the plaintiff to show that there was no fraudulent intent when the alteration was made. (Syllabus by the Court.)

Appeal from district court, Rock county; PERKINS, Judge.

P. E. Brown, W. N. Davidson, and W. E. Akers, for appellant. E. H. Canfield and A. J. Daley, for respondent.

COLLINS, J. This was an action originally brought in justice's court to recover the sum of $40 alleged to have become due on November 1, 1889, as an installment of the agreed price of a harvesting-machine sold and delivered by plaintiffs to defendant. The latter by his answer admitted the sale and delivery, but averred that, in accordance with the terms therewith, he executed and delivered to the

plaintiffs his three negotiable promissory notes, each payable to their order, aggregating in amount the stipluated price of the machine; one of the same being for $40, maturing November 1, 1889, and having been given for the identical installment to recover which the action had been instituted. He further alleged that, after the making and delivery of said note, the plaintiffs, without the knowledge or consent of defendant, willfully and fradulently altered the note by changing the amount of the same from $40 to $45. On these pleadings the parties proceeded to trial, although the plaintiffs made and filed a so-called reply, in which the execution, delivery, and alteration of the note for $40 were admitted. It was further averred therein that the alteration was not willful or fraudulent, and that it was made without plaintiffs' knowledge or consent. The plaintiffs had a judgment, from which an appeal on questions of law alone was taken to the district court, all of the proceedings and the evidence be ing returned. The appeal here is from a judgment in plaintiffs' favor in the lastnamed tribunal.

1. The paper styled a "reply" was unauthorized as a pleading in the case, and, as such, must be treated as a nullity. The statute, Gen. St. 1878, c. 65, § 28, authorizes a reply in justice's court only when a counter-claim is set up in the answer. But it was filed by the plaintiffs without objection from the defendant, and beyond a doubt was considered by the parties and the justice as properly in the case. In the district court it was not regarded as a reply, but its contents were treated as in the nature of formal admissions made by the plaintiffs upon the trial, and this view of the effect of the paper was not errone

ous.

2. As the plaintiffs could not maintain an action upon the materially altered promissory note, they were compelled to resort to the original consideration as a foundation for their claim; and the question then arose, and is now presented, of their right to recover on the indebtedness for which the note was given. From an examination of the authorities, it appears to be well settled that a recovery is not permitted, in any form of action, where the holder of a written security or evidence of a debt has altered or changed the instrument in a material part to his own advantage, and with intent to defraud his debtor. The law is stated to be that, when the holder of a bill or note fraudulently alters its legal effect, he not only destroys the instrument by thus destroying its legal identity, but he also extin. guishes the debt for which it was executed and delivered. Daniel, Neg. Inst. § 1410a; Rand. Com. Paper, § 1763; Chalm. Dig. Bills & N. art. 249; Chit. Bills, 100q. and cases cited in each of these volumes. We find but one well-considered and fairly recent case to the contrary. Matteson v. Ellsworth, (1873,) 33 Wis. 488. It is said that the policy of the rule which forbids a recovery upon an instrument which has been fraudulently and materially altered is to prevent the perpetration of fraud; and it is very obvious that, if the

guilty party may thereafter recover as On the original debt, the rule itself would be defeated. If a party can be allowed to take the chances of success by fraudulently altering the written obligation of a debtor, without risk of loss in case of discovery, frauds of this description would be greatly encouraged. The law has therefore im. posed upon a party who fraudulently tampers with an instrument given to evidence or to secure an indebtedness, in any material particular, the forfeiture and absolute loss of the debt itself, upon the principle that "no man should be permitted to take the chances of gain by the commission of a fraud, without running the risk of loss, in case of detection." Indeed, it has been held that when the alteration was a material one, not only was the instrument avoided, but the original consid. eration forfeited, without inquiry as to the intent. Daniel, Neg. Inst. § 1411, and cases cited.

3. It stood admitted by plaintiffs, by means of the paper filed by them styled the "reply," that the note had been materially changed and altered after its execution and delivery. The defendant testified fully as to the alteration, so that the fact was conclusively established upon the trial, and the court could not have found to the contrary. This brings us to a consideration as to where the burden of proof was on the question of the character and intent of the alteration. The plaintiffs asserted, in connection with their admissions, that the change was not willful or fraudulent, and that it was made without their knowledge or consent, but they gave no testimony and offered no explanation upon this feature of the case. We are very clearly of the opinion that, if the alteration of the instrument be a material one, it is presumed to have been fraudulently made, and it is incumbent upon the holder to explain it. The act is apparently fraudulent. It is wrongful, and naturally indicates a wrongful intent which requires an explanation to excuse it. The holder of a note or bill which has been altered in a material part must be required to show that the change was made innocently, or for a proper purpose, or by a stranger, or it would follow that, when the most glaring forgeries have been committed by alterations of negotiable instruments, the maker or the party sought to be charged would have to discover the fraudulent motive of the forger, and establish it by proof. The party in default, and who ordinarily must have knowledge of all of the circumstances attending the alteration, must bear the burden of explaining it, and of extricating himself. Daniel. Neg. Inst. §§ 1412, 1413, and Rand. Com. Paper, § 1785, with cases cited; Milbery v. Storer, 75 Me. 69; Croswell v. Labree, 81 Me. 44;1 Robinson v. Reed, 46 Iowa, 219. After the instrument in question passed from defendant's hands into plaintiffs' actual or constructive possession, a material alteration was made by increasing the amount thereof. Admitting all this, and at the same time asserting that the change was 116 Atl. Rep. 331.

not willful or fraudulent, and was without their knowledge or consent, the plaintiffs made no effort to explain the circumstances, or to show the facts, of which they must have been cognizant. The alteration in itself was prima facie evidence of a fraudulent intent, and the onus then rested upon the plaintiffs to repel and overthrow this proof of such intent. It has already been held by this court that the unauthorized and material alteration of a mortgage by the mortgagee, or with his privity after execution, unexplained, is presumptively fraudulent, and vitiates the instrument. Russell v. Reed, 36 Minn. 376, 31 N. W. Rep. 452. Judgment reversed.

The evidence examined and considered in an action brought to recover the contract price for drilling and sinking a well. Held that, from the evidence, the jury was justified in finding that the contract had been substantially performed by the contractors.

(Syllabus by the Court.)

Appeal from district court, Waseca county; BuсKHAM, Judge.

Sawyer, Abbott & Sawyer, for appellant. E. B. Collester and P. McGovern, for respondent.

COLLINS, J. Action by an assignee, under the insolvency laws of the state, to recover for work done and materials furnished by his assignors in drilling and sinking a well upon defendant's farm. The complaint set forth an agreed price, and also the reasonable value of the services and materials; but the trial proceeded upon the theory that there was a contract between the parties, which had been substantially performed at a time when the defendant forbade the assignors, and, later on, their assignee, to proceed and fully complete the undertaking. The court below, when charging the jury, characterized the understanding or agreement entered into by the parties in reference to the sinking of a well as a “loose bargain;" and we may add that the case itself seems to bave been rather loosely tried by their counsel. It is claimed by the defendant (appellant) that there was an entire absence of evidence on which the verdict in plaintiffs' favor can be sustained; and his claim is undoubtedly correct, unless there was testimony adduced upon the trial which would justify the jury in finding that the contract with respect to the drilling and sinking of the well had been substantially complied with, when the plaintiffs' assignors were prohibited doing any thing further. The plaintiffs' testimo ny was mostly directed towards establishing this substantial compliance, while the defendant, in addition to controverting on this issue, spent much of his time in endeavoring to show that the contract. ors found an abundance of water at 135 feet from the surface, and should have then finished the job by putting in a pump,

instead of proceeding on-fraudulently, as he insists-to the depth of 262 feet. The court was not requested to pass upon the sufficiency of plaintiffs' proofs at any time prior to the hearing of the motion for a new trial. No exceptions were taken while the testimony was being received, nor to any portion of the charge which was in line with the theory before mentioned, on which the trial was conducted from beginning to end, that plaintiffs might recover the contract price on showing substantial performance. Whether right or wrong,-we do not intimate that it was not right,-this is the law by which the case must be controlled on appeal. Smith v. Pearson, 44 Minn. 397, 46 N. W. Rep. 849. To entitle a party to recover the contract price in an action brought for that purpose, he must have made a substantial performance of his agreement. Where the omissions and defects do not go to the root of the subject-matter of the contract, but are easily susceptible of a remedy, so that an allowance out of the contract price will give the other party full indeninity, and give him, in effect, just what he bargained for, the contractor may recover the contract price, less the damages on account of such defects or omissions. This rule is applicable to contracts generally. And when the contractor shows a substantial performance, if the other party wishes to claim an allowance or deduction on account of these slight defects and omissions the burden is on him to allege and prove his damages. Leeds v. Little, 42 Minn. 414, 44 N. W. Rep. 309. The defendant did not choose to make any claim for an allowance for such defects and omissions, but relied on his ability to overcome the plaintiffs' contention that there had been a substantial performance, and, more especially, it appears from the testimony, upon his allegations that the contractors had fraudulently drilled deeper than was necessary. The plaintiffs' testimony was to the effect that water in sufficient quantities was not reached until the well was drilled to the depth of 262 feet, and was then obtained in abundance; that it was only requisite then to put on a screen at the bottom, and clean out the sand which had accumulated there; that in putting down the screen it got caught, and thereupon the defendant ordered them to desist. We are of the opinion that on this testimony the jury was warranted in finding that the agreement had been substantially complied with. The procuring of water was the main thing, and the contractors' omission to finish putting on the screen at the bottom, there being no bad faith on their part, did not go to the root of the subject-matter of their contract. Order affirmed.

PEARSON V. CHICAGO, M. & ST. P. Ry. Co. (Supreme Court of Minnesota. July 17, 1891.) INJURIES TO RAILROAD EMPLOYE-NEGligence of

FELLOW-SERVANT.

A crew of sectionmen, of which plaintiff was one, was engaged in loading railroad iron from the ground upon a flat-car, when some of the crew negligently let one of the iron rails fall

upon plaintiff's arm. Held, that the injury was not the result of any danger peculiar to or directly connected with the use and operation of the railroad, and hence not within the provisions of chapter 13, Laws 1887, making railroad companies liable to an employe for injuries caused by the negligence of a co-employe.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; HICKS, Judge.

F. D. Larrabee, for appellant. W. H. Norris, for respondent.

MITCHELL, J. This action was brought to recover damages for personal injuries received by plaintiff while in the employment of the defendant, through the negli gence of his co-employes. When the plaintiff's counsel closed his opening statement to the jury, the court dismissed the action upon the ground that upon the facts stated the defendant was not liable. The only question is whether the case comes within the provisions of chapter 13, Laws 1887, making railroad companies liable to an employe for injuries caused by the negligence of a co-employe. Briefly stated, the facts were that a crew of sectionmen, of which plaintiff was one, was engaged in loading railroad iron from the ground upon a flat car, when some of the crew negligently let one of the iron rails fall upon plaintiff's arm. As is well understood, the general duty of sectionmen is to repair the railway track and road-bed, and the iron which they were loading in this instance was designed to replace other iron to be removed from the track. The construction of this act has been considered by us in several cases, in which we have invariably held that it applies only to the peculiar hazards incident to the use and operation of railroads, and was designed exclusively for the benefit of those who, in the course of their employment, are exposed to such hazards, and whose injuries are caused thereby; in short, that the statute includes only the cases of servants exposed to and injured by the dangers peculiar to the use and operation of railroads. It is not necessary to recur again to the reasons which led us to adopt this construction. In Lavallee v. Railway Co., 40 Minn. 249, 41 N. W. Rep. 974, the decedent, who was employed as a boiler-maker's helper in the railroad shops, was directed by the boilermaker to pick up some rubbish near a dead locomotive then standing on a track which ran into the boiler-shop. While so engaged, the smoke-stack (which two men were removing) fell upon nim and killed him. We held that the case did not come within the statute. In Johnson v. Railroad Co., 43 Minn. 222, 45 N. W. Rep. 156, the facts were that a crew of men, of which plaintiff was one, were engaged in repairing a railroad bridge, and in performing the work it was necessary to leave the draw partly open. Through the negligence of one of the crew, the draw was left unfastened, and was blown shut by the wind, and injured the plaintiff while at work between the stationary part of the bridge and the draw. This was also held not within the statute. In Smith v. Railroad Co., 44 Minn. 17, 46 N.

W. Rep. 149, while the plaintiff, with other sectionmen, was in the act of removing their hand-car from the railroad track, he was struck by the engine of a moving freight train. The injury was held to be the result of a danger peculiar to the use and operation of the railroad, to which the plaintiff was exposed in the course of his employment, and hence within the statute. In Steffenson v. Railroad Co., (Minn.) 47 N. W. Rep. 1068, the plaintiff and others were employed as section hans, who, with their tools, were carried to and from their work on a handcar. While they were passing over defendant's track on the hand-car, one of the crew negligently pushed against he plaintiff, throwing him off the car. We held that the injury was the result of a danger incidental and peculiar to the use and operation of railroads, and hence that the case was within the statute,the same result arrived at by the supreme court of the United States in a similar case arising in Iowa, after a full examination of all the decisions of the supreme court of that state construing their statute, which is, in express terms, substantially the same as ours as construed by this court. Railway Co. v. Artery, 137 U. S. 508, 11 Sup. Ct. Rep. 129. We are of opinion that, upon its facts, the present case is not distinguishable in principle from the Lavallee and Johnson Cases. While in a certain sense it may be said that sectionmen who repair the track are engaged in operating the railroad, yet, in this case, the plaintiff's injury was not the result of any risk or danger peculiar to or directly connected with the use and operation of the railroad. The risks to which he was exposed, and which caused his injury, were not different from those to which any one is subjected who, with others, is engaged in loading or unloading like ponderous articles. As suggested by the trial court, the dangers to which he was exposed were precisely the same as if he and other employes of a maufacturing company had been engaged in loading rail. road iron upon a flat-car for shipment from the factory. Order affirmed.

FARRELL V. FABEL.

(Supreme Court of Minnesota. July 17, 1891.) VALIDITY OF BOND-PAROL AGREEMENT-KNOWLEDGE OF Obligee.

1. Where a bond, complete on its face, has been actually delivered, the obligee cannot be affected by an agreement between the principal and the surety, not communicated to the obligee, that the bond should not take effect until executed by another surety. Following Berkey v. Judd, 34 Minn. 393, 26 N. W. Rep. 5.

2. The answer held insufficient, because not alleging that the agreement between the principal and the surety was known to the obligee at or before the delivery of the bond.

(Syllabus by the Court.)

Appeal from district court, Ramsey county; BRILL, Judge.

John W. White, for appellant. P. J. McLaughlin, for respondent.

MITCHELL, J. This action was brought upon a bond executed to one Farrell,

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plaintiff's assignor, by defendant O'Dea as principal, and defendant Fabel as surety, and delivered by filing it, pursuant to an order of court, on July 29, 1889. The bond was complete on its face. The answer of Fabel admits the execution of the bond, but alleges that he did so upon the condition that O'Dea should obtain one Houlehan as an additional surety; "that Farrell had full notice and knowl edge of said agreement on part of said O'Dea to procure said Houlehan as a cosurety with the defendant on said bond; *that defendant had no notice of the failure of said O'Dea to procure said Houlehan as a bondsman until on or about the 15th of August, 1889; and that thereafter he notified said Farrell that he disclaimed any liability thereunder by reason of said failure. Conceding that the answer sufficiently alleges that Fabel signed the bond upon an understanding between himself and O'Dea, and with the expectation that the latter would procure Houlehan to execute it as co-surety, and that it should not take effect until he had signed it, and assuming that such fact, if known to Farrell at or before the delivery of the bond, would bave constituted a good defense, still the answer is fatally defective in not alleging that notice or knowledge of this agreement was communicated to Farrell before the bond was delivered by filing it, when, if at all, it became operative as a binding contract. For anything that the answer contains, this notice or knowledge might not have been communicated to Farrell until after the bond was approved and accepted by the court and filed. Indeed, taking all the allegations of the answer together, the fair inference is that it was not communicated to him until about August 15, 1889. While it was not necessary that the answer should allege the exact date, yet it was essential, in order to state a defense, under any view of the case, to allege that notice of this alleged agreement was com municated to Farrell before the delivery of the bond. The bond being perfect on its face, and in fact delivered by the principal and surety, the obligee cannot be prejudiced by any secret agreement between them, not at the time known to him. Berkey v. Judd, 34 Minn. 393, 26 N. W. Rep. 5. As the answer stated no defense, the court was right in excluding all evidence under it. Order affirmed.

ST. PAUL, S. & T. F. R. Co. v. FIRST DIVIS-
ION OF ST. PAUL & P. R. Co. et al.1
(Supreme Court of Minnesota. March 29, 1879.)
PATENTS FOR LANDS ON NAVIGABLE RIVERS-BOUN-
DARIES-ISLAND NOT SHOWN ON PLAT.

1. Patents by the general government of public lands bordering on streams are not limited by the meander lines. Following Schurmeier v. Railroad Co., 10 Minn. 82, (Gil. 59,) and 7 Wall. 272. Such patents of public lands bordering on streams navigable in fact, issued under the acts of congress providing for the survey and sale of

This case, filed March 29, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all the cases in the Minnesota Reports from volume 26, p. 1.